ISSN 1062-7421
Vol. 11 No. 11 (November 2001) pp. 519-522.

UNDERSTANDING THE U. S. SUPREME COURT: CASES AND CONTROVERSIES by Kevin T. McGuire. New York: McGraw-Hill Companies, Inc., 2002. 224 pp. Paper $28.80. ISBN: 0-07-233731-1.

Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University.

Kevin McGuire's UNDERSTANDING THE U. S. SUPREME COURT is a sophisticated introduction to the judicial politics of the Supreme Court of the United States. Employing contemporary political science and legal research, McGuire explores the relationship between the behavior of Supreme Court justices, and the political actors who try to influence them (p. 9). In writing on this topic, McGuire works a scholarly area that has already been thoroughly and often well tilled. However, McGuire's approach to understanding the interplay of law and politics is fresh and engaging-in large part because of his reliance on a series of case studies as vehicles for advancing our understanding of how and why the Court renders its decisions.

Unlike more traditional works, which intersperse examples and case excerpts in the course of elaborating different aspects of the judicial process, UNDERSTANDING THE U. S. SUPREME COURT is built around five extended studies of Court decisions and controversies over the past quarter century. McGuire's readers leave each of his case chapters with a greater understanding of the particular issue explored, a stronger grasp of the scholarship relevant to that case, and a broad sense of how this research helps us understand important aspects of the Court's procedure and operations.

In large part because McGuire's individual case studies provide absorbing frameworks for the themes and issues presented in each chapter, UNDERSTANDING THE U. S. SUPREME COURT is dense without being inscrutable. For example, McGuire explores the politics of the Supreme Court appointment process by tracing a range of explanations for why Supreme Court justice Clarence Thomas was confirmed in 1991, while a more professionally qualified nominee, Robert Bork, was rejected four years earlier. In this and other chapters, McGuire links his investigation of an inherently interesting institutional problem with a set of general observations about the factors that influence the dynamics and activities of the Court.

After a brief preface, McGuire's first chapter provides a concise overview of the Court's historical evolution and formal decision making procedures. The heart of UNDERSTANDING THE U. S. SUPREME COURT consists of the five case study chapters that immediately follow. Each of these chapters begins with a brief introduction, highlighting general questions and themes that are subsequently explored. The author then often provides an extensive political, historical, and legal background for understanding the individual topics and their significance. McGuire next systematically examines the questions posed at the outset of each chapter through

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succinct summaries and applications of political science and legal research. For example, while discussing the factors that shape judicial decision making, McGuire relies on studies by Harold Spaeth and Jeffrey Segal (1993, 1999) to make the case that justices rely more on personal policy preferences than precedent or other legal considerations. Each case study chapter concludes by highlighting what readers have learned about judicial decision making in the discrete area examined, along with providing questions for discussion, and suggestions for further reading.

After scrutinizing the Supreme Court nomination and confirmation process in Chapter 2 by comparing the experiences and fates of Bork and Thomas, McGuire turns in Chapter 3 to the Supreme Court case of SOUTH DAKOTA v. DOLE (in which the Court permitted Congress to use its "Spending" power to induce state compliance with a national drinking age of 21). By highlighting distinctive elements of DOLE, including conflicting lower court interpretations surrounding the case, and its importance as a public policy and federalism issue, McGuire points to factors that shape how the Court composes its case docket from amongst the thousands of petitions it receives annually. Chapter 4 employs McCLESKEY v. KEMP (in which the Court considered whether racial disparities in the imposition of the Georgia death penalty were unconstitutional) to assess the significance of various considerations, including legal factors, ideology, attitudes about judicial restraint, and external pressures, on case outcomes.

In Chapter 5, McGuire investigates why a suit brought against New York State's "Son of Sam" law (which barred individuals from profiting from publications about their own criminal activity) attracted so much legal attention. More than 50 separate groups joined 9 amicus briefs in the case, SIMON & SCHUSTER, INC., v. NEW YORK STATE CRIME VICTIMS BOARD. In the course of discussing why the Court granted cert. in this case, McGuire considers more generally the role and motivations of interest groups in lobbying the Court, as well as the Court's openness, if not susceptibility, to this activity. Finally, Chapter 6 looks at the impact of Supreme Court decisions by charting the effects of the Court's landmark decision, BUCKLEY v. VALEO, on campaign finance law. McGuire's analysis of BUCKLEY illustrates how intimately involved the Court can become in policy details. At the same time, he uses the case to make the case that the implementation and impact of Court decisions are highly contingent upon the cooperation of other political actors.

On the whole, McGuire's case study approach is effective, engaging, and rewarding. The cases provide a series of specific, orienting questions about the judicial process, and, at their best, set out a dramatic issue or puzzle which induces the reader to join McGuire in a kind of scholarly detective work. McGuire's chapters blend research, popular and press commentaries, statements by involved principals, and selections from primary documents (including Court opinions, amicus briefs, and even a Court docket sheet) in a way that brings the cases alive. One suspects that this dynamic, accessible approach will lead many students to learn from McGuire's book without fully realizing that they are engaged in a complex scholarly endeavor.

Among other benefits, McGuire's case-based approach, and the wide array of topics and research he covers, makes his work suitable for adoption in numerous courses. Traditional constitutional law

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classes would benefit by using UNDERSTANDING THE U.S. SUPREME COURT as a supplementary text that brings the politics of judicial decision making into the foreground. McGuire's work would also be suitable for judicial process, separation of powers, and public policy classes, among others.

Notwithstanding the successes of McGuire's case studies, at times his analysis is somewhat curtailed - hardly a surprising result given his compression of extensive material into less than 200 pages. Still, one is left a little unsatisfied by some of his discussions and conclusions. For example, in using BUCKLEY as a vehicle for evaluating the implementation and impact of Court decisions, McGuire somewhat downplays the decision's effects on our system of campaign finance: "[t]he evidence that [the Court] fundamentally altered the whole of campaign finance . . . is not overwhelming" (p. 195). McGuire reaches this conclusion by noting that after
BUCKLEY, campaign spending did not vastly exceed the federal spending limits invalidated by the Court until relatively recently. He also argues that the
decision did not obviously lead to "increased dependence upon the money of interest groups" since individual donors still provide the bulk of a candidate's campaign funds and "PACs' share of contributions [to campaigns] has [actually] decreased in the last ten years" (p. 190).

Although it is obviously true that PACs are not the sole, or even the most important sources of campaign finance, candidates for office clearly have increased their dependence on PAC money since BUCKLEY. Total PAC expenditures on congressional candidates have increased more than eighteen times since the 1970s. Moreover, BUCKLEY'S impact needs to be measured with a more inclusive calculus that takes into account ways in which campaign finance innovations have sought to skirt the opinion's restrictions. The contemporary explosive growth of "soft money" and the rise of financial "bundling," reflect efforts to circumvent campaign finance laws in the wake of the decision (see Larson 2002).

A more important criticism of UNDERSTANDING THE U.S. SUPREME COURT has to do with its overall themes and conclusion. McGuire uses his five casestudies as occasions to present research and reach findings about the Court's responsiveness (and non-responsiveness) to a variety of political stimuli. His general purpose seems to be to provide his readers with "a firmer grasp on the systematic knowledge of judicial politics that is the product of scholarly research" (p. 9), thereby diminishing the "mystery" that sometimes surrounds the Court (p. 2).

However, what "systematic knowledge of judicial politics" do McGuire's readers come away with? Are we limited to the insights of the individual cases (policy preferences are critical in shaping judicial opinions, Supreme Court decisions depend upon widespread support in order to be effective, etc.) or does UNDERSTANDING THE U. S. SUPREME COURT help us draw a bigger picture about how we should regard the Court's capacities and vulnerabilities
as a political institution?

UNDERSTANDING THE U. S. SUPREME COURT does not offer explicit guidance on whether its sum is greater than its individual parts, an oversight that could be redressed by an expanded preface or a brief conclusion. Do McGuire's cases, taken together, give us any insight into the conditions under which the Court is more and less likely to be an effective

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policymaker? Despite McGuire's conclusion that judicial decisions are "guided more by politics than by law" (p. 91), are there general circumstances in which law is likely to carry greater weight? Does the research and analysis in UNDERSTANDING THE U.S. SUPREME COURT have any broad implications for interbranch relations between the Court, Congress, and the Presidency, or for relations between the Court and lower courts? Does McGuire's study give us any special purchase on the Alexander Bickel's "countermajoritarian dilemma?" McGuire might bring some of these questions - and at least a sketch of how we might use his findings to address them-into sharper relief for both students and instructors hoping to use his text.

Notwithstanding these issues, UNDERSTANDING THE U.S. SUPREME COURT is a stimulating piece of scholarship. Upon completing the book, I found myself
thinking through McGuire's cases and imagining additions or substitutions to his list. It struck me, for example, that BUSH v. GORE would be an especially suitable subject for the author's clear-eyed, organized analysis. I also mused about the utility (and demerits) of adding a chapter on the Court and the separation of powers, perhaps using ROE v. WADE and the scholarship of Neal Devins (1996), Mark Graber (1993), and others as a way of illustrating the tools and incentives that shape conflict (and cooperation) between our federal institutions on major policy issues. In the course of this exercise, I realized, of course, that I was operating from the assumption that these chapters were mine to write; in wanting to add to McGuire's analysis, I really wanted to appropriate his project, to make it my own. In short, I wish I had written this book.

Kevin McGuire has composed a careful, studious, and creative volume on the Supreme Court that should be read and utilized by a broad group of scholars conducting political science and legal research. UNDERSTANDING THE U.S. SUPREME COURT is a pleasure to read, and it will be a pleasure to teach.

REFERENCES:

Larson, Bruce. 2002. "The Futile Quest for the Ideal Congressional Campaign Finance System." In Peter Woolley and Albert Papa (eds), AMERICAN POLITICS: CORE ARGUMENT/CURRENT CONTROVERSY. Upper Saddle River. NJ: Prentice Hall.

Graber, Mark. 1993. "The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary." STUDIES IN AMERICAN POLITICAL DEVELOPMENT 7: 35-73.

Devins, Neal. 1996. SHAPING CONSTITUTIONAL VALUES. Baltimore: The Johns Hopkins University Press.

Segal, Jeffrey A. and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. Cambridge: Cambridge University Press.

Spaeth, Harold J. and Jeffrey A. Segal. 1999. MAJORITY RULE OR MINORITY WILL: ADHERENCE TO PRECEDENT ON THE U. S. SUPREME COURT. Cambridge: Cambridge University Press.

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Copyright 2001 by the author, Bruce Peabody.